UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4713

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
KENNETH GLENN HINSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:07-cr-00485-TLW-1)

Submitted:

July 27, 2011

Decided:

August 4, 2011

Before NIEMEYER, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael
Chesser,
Aiken,
South
Carolina,
for
Appellant.
William N. Nettles, United States Attorney, Robert F. Daley,
Jr., Assistant United States Attorney, Columbia, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Kenneth

Glenn

Hinson

was

convicted

of

unlawful

possession of a firearm by a convicted felon and sentenced to a

term of 115 months imprisonment. *

Hinson appeals his sentence,

arguing that the court erred in finding that he possessed the

firearm

in

connection

Guidelines

Manual

discretion
varying

in

with

2K2.1(b)(6)

departing

upward

another

pursuant

felony,

(2009),

upward

under

to

U.S.C.

18

USSG

U.S.
and

Sentencing
abused

4A1.3,

3553(a)

its

p.s.

and

(2006).

We

affirm.
A

sentence

is

reviewed

abuse of discretion standard.

38, 51 (2007).

for

reasonableness

under

an

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of a sentence.

Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
The court must first ensure that the district court did not
commit any significant procedural error, such as failing to
properly calculate the applicable Guidelines range, failing to
consider

the

18

U.S.C.A.

3553(a)

(West

2000

&

Supp.

2006)

The district court initially sentenced Hinson as an armed

career criminal to 300 months imprisonment.
18 U.S.C.A.
924(e) (West 2000 & Supp. 2011). In his first appeal, we held
that he lacked the necessary predicate convictions for an armed
career criminal sentence and remanded the case for resentencing.
United States v. Hinson, 363 F. Appx 998 (4th Cir. 2010).

factors, or failing to explain the sentence adequately.

552

U.S.

at

51.

If

the

sentence

is

free

of

Gall,

significant

procedural error, the appellate court reviews the substantive

reasonableness of the sentence.
Section 2K2.1(b)(6)

Lynn, 592 F.3d at 575.

provides

for

four-level

enhancement [i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.
2K2.1(b)(6).

USSG

[T]he purpose of Section 2K2.1(b)(6) [is] to

punish more severely a defendant who commits a separate felony

offense that is rendered more dangerous by the presence of a
United States v. Jenkins, 566 F.3d 160, 164 (4th Cir.

firearm.

2009) (internal quotation marks omitted).

Another felony offense, for purposes of subsection
(b)(6),

means

any

federal,

punishable

by

imprisonment

regardless

of

whether

conviction obtained.

state,

or

for

term

criminal

local

offense[]

exceeding

charge

was

USSG 2K2.1 cmt. n.14(C).

one

brought,

. . .
year,
or

A firearm is

used or possessed in connection with another felony offense if

it

facilitated,

offense.

or

had

the

potential

of

facilitating,

the

Id. cmt. n.14(A); see Jenkins, 566 F.3d at 162-63.

[I]n the case of a drug trafficking offense in which a firearm

is found in close proximity to drugs, . . . application of [the
four-level enhancement] is warranted because the presence of the
firearm has the potential of facilitating another felony offense
3

. . . .

USSG 2K2.1 cmt. n.14(B); see Jenkins, 566 F.3d at

163.
The district court determined that the enhancement was
warranted because Hinson had testified under oath at his state
trial on other charges that he was a drug dealer and that he
fled his home because he thought law enforcement officers knew
about four pounds of marijuana he had stored in his basement.
In addition, the district court considered Hinsons post-arrest
statement to law enforcement officers that he always had a gun
with him.
we

Based on the uncontested evidence before the court,

conclude

that

the

district

court

did

not

clearly

err

in

finding that Hinson was selling marijuana and that the firearm
he

possessed

had

the

potential

to

facilitate

that

activity.

Therefore, the district court properly applied the four-level

enhancement under USSG 2K2.1(b)(6).
Next,

we

review

the

district

courts

departure

by

considering whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with
respect
range.
123

to

the

extent

of

the

divergence

from

the

sentencing

United States v. Hernandez-Villanueva, 473 F.3d 118,

(4th Cir. 2007).

Under

USSG

4A1.3(a)(1),

the

district

court may upwardly depart from the Guidelines sentence if the

court determines that the defendants criminal history category
substantially

under-represents
4

the

seriousness

of

the

defendants

criminal

history

or

the

likelihood

defendant will commit other crimes[.]

prior

sentences

category.

not

used

in

that

the

The court may consider

computing

the

criminal

history

See USSG 4A1.3(a)(2)(A).

The district court considered two sentences that were

too old to be counted:

one for aggravated assault and battery;

and one for cocaine trafficking.

Hinson points out that a prior

sentence not counted in the defendants criminal history because

it is too old, i.e., outside the applicable time period set out
in 4A1.2, may be the basis for a departure only if the old
conviction involved similar or serious dissimilar conduct.
USSG 4A1.2 cmt. n.8.

See

The district court specifically declined

to find that the prior criminal conduct underlying the uncounted

sentences was similar to Hinsons 922(g)(1) conviction, but
found that the offenses were very serious.
Hinson
assault

and

sufficiently

argues

battery
serious

that
and

to

the

prior

cocaine
warrant

offenses,

aggravated

trafficking,
departure

were

not

because

the

aggravated assault occurred at least twenty years before the

instant

offense

and

the

cocaine

trafficking

only possession of eleven grams of cocaine.

offense

involved

However, the age of

the assault and battery does not lessen its seriousness; the
presentence report states that Hinson struck another man with a
car

jack.

Moreover,

Hinson
5

appears

to

understate

the

seriousness of his cocaine trafficking offense.

this

appeal

does

not

disclose

the

exact

The record in

quantity

of

cocaine

involved in Hinsons cocaine trafficking offense but, from the

available information, it appears that it was more than eleven
grams.

We

conclude

that

the

district

court

reasonably

determined that both of Hinsons uncounted sentences were for

serious criminal conduct and that criminal history category II
significantly
risk

of

under-represented

recidivism.

reasonable.

his

Thus,

criminal

the

history

decision

to

and

his

depart

was

Moreover, in departing, the district court followed

the incremental approach set out in 4A1.3(a)(4)(A), and the

extent of the departure was reasonable.
After departing upward, the district court announced
that it would also vary upward by two levels.
that

the

variance

was

both

procedurally

Hinson maintains
and

substantively

unreasonable because, in his view, the court relied again on the

uncounted sentences which were the basis for the departure to
justify

further

mischaracterizes
court

noted

the

Hinsons

increase
courts

in
reasons

propensity

to

his
for

sentence.
the

commit

variance.

new

crimes

Hinson
The
after

incarceration, and to commit violent crimes, first against an

adult, then against a child.

The court also reviewed the

3553(a) factors in light of the undisputed record and stated

that an upward variance was necessary to reflect the seriousness
6

of the instant offense, promote respect for the law, provide

adequate deterrence to criminal conduct, and protect the public
from further crimes of the defendant.

Alternatively, the court

found that the testimony of the four witnesses who testified at

sentencing that Hinson had sexually abused them when they were
children had sufficient indicators of reliability to justify a
two-level variance.
Thus, the courts first ground for a variance was not
simply the fact of Hinsons prior uncounted offenses, but his
failure to be deterred by prior incarcerations and the nature of
his offenses.

The courts second ground was credible evidence

of a number of sexual crimes Hinson had committed, only one of

which he had been convicted and punished for.

We are satisfied

that the courts variance was reasonable on either ground and

the

resulting

sentence

was

procedurally

and

substantively

reasonable.
We
district
facts

court.

and

materials

therefore

legal
before

We

affirm

dispense

contentions
the

court

the
with

sentence
oral

imposed

argument

are

adequately

and

argument

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED